The Briefs on the Merits - Bna

Ch. 13.6 <strong>The</strong> <strong>Briefs</strong> on the Merits 707
Court Rule 14.1(d) requires the certiorari petition to provide citations to both
the “official and unofficial reports” of the opinions below, it is fair to assume
that the Court finds some value in the unofficial citations.
(4) Citation should be to the page of the opinion on which the significant
passage occurs, as well as to the first page. E.g., American Ins. Ass’n v.
Garamendi, 539 U.S. 396, 411 (2003).
(5) Federal statutes should be cited to the United States Code and, if
there is good reason, also to the Statutes at Large.
(6) Use supra to refer to authorities only sparingly. It is easier to repeat
the citation than for the Court to have to hunt through the brief for it. If
supra is used in a citation, always include the page reference, at least if it is
more than a page away. If the citation is long, an abbreviation will be sufficient.
E.g., GTE, 427 U.S. at 54; or see GTE, discussed at p. 22, supra. Other
informative forms are permissible.
(7) Avoid excessive use of footnotes. <strong>The</strong>y make it harder for the judicial
reader to follow the argument. Citations in the text are both less distracting
and more likely to be read. If it cannot be avoided, however, a long string
citation should probably be relegated to a footnote (e.g., a citation of many
state statutes to show the standards adopted by state legislatures in response
to a problem).
(8) Judge Prettyman of the Court of Appeals for the District of Columbia
Circuit once advised: “Don’t keep saying ‘appellant’ and ‘appellee.’ By
the time the reader gets to the third page he becomes completely confused
as to which is which.” 8 <strong>The</strong> same can be said of the terms “petitioner” and
“respondent,” particularly where the petitioner in an earlier stage of the case
was not the petitioner in the Supreme Court. A Justice is likely to be reading
briefs in a number of cases at the same sitting. Although the Supreme
Court rules are silent on the matter, it often is better to use the names of
the individuals or corporations (or abbreviations thereof), or some descriptive
appellation such as “the plaintiff,” “the defendant,” “the employee,” “the
taxpayer,” or “the contractor.” <strong>The</strong> Federal Rules of Appellate Procedure now
recommend using more descriptive appellations in briefs on appeal to the courts
of appeals. 9 Where there is only one private party in a case involving the
United States or some other governmental agency, the use of “petitioner” or
“respondent” may be appropriate if the governmental party is referred to as
“the United States,” “the Government,” or “the Labor Board.” But if there
is more than one private party, use of the more descriptive designations should
be considered.
(9) Citations to the printed joint appendix should read “J.A. 36.” <strong>The</strong>
Court’s rules include “App. 12” as an example of a reference to the Joint Appendix.
Rule 24.1(g). However, the traditional abbreviation “J.A.” is still acceptable
8 Judge Prettyman, Some Observations Concerning Appellate Advocacy, 39 VA. L. REV. 285, 292 (1953).
9 See FED. R. APP. P. 28(d):
In briefs and at oral argument, counsel should minimize use of the terms “appellant” and “appellee.”
To make briefs clear, counsel should use the parties’ actual names or the designations used in the
lower court or agency proceeding, or such descriptive terms as “the employee,” “the injured person,”
“the taxpayer,” “the ship,” or “the stevedore.”